The mess of doing business in the Philippines

The Office of the Ombudsman has seen fit to place the leadership of the Anti-Red Tape Authority under preventive suspension related to the complaint filed by DITO, a newcomer in telecoms, allegedly even before the officials could present or prove their case and their innocence. From the looks of it, the Anti-Red Tape Authority officers have all been thrown under the bus with no help from anyone at the Office of the President. Because the DITO complaint is in court, I can’t comment on the matter. Suffice it to say that the legal actions are primarily designed to prevent another telecoms company from getting hold of frequency that could be beneficial to DITO and in order to do this, they had to file graft charges against ARTA officials and the swift preventive suspension nullifies any actions taken by ARTA related to red tape or excessive delays on the part of the National Telecommunications Commission or NTC. Several cases related to frequencies and the National Telecommunications Commission are now in different courts.

However, I am compelled to comment that the recent decision of the Ombudsman to preventively suspend the leadership of ARTA may have more far reaching consequences or legal ramifications beyond legal strategies and justifying the need for “preventive suspension” in the DITO case. In fact, the action of the Ombudsman against ARTA officials could end up being used to sabotage or torpedo the Ease of Doing Business law and the oversight function of the ARTA over quasi-judicial bodies. For the longest time, many government agencies with quasi-judicial authority such as the National Telecommunications Commission, the Food and Drug Administration and the Land Transportation Franchise Regulatory Board, even governors and mayors etc., have been at odds with the Anti-Red Tape Authority because of ARTA’s power to force the hand of these quasi-judicial bodies to speed up or fast-track long delayed applications for permits, approvals and the like. These government offices have notorious histories of delay, complexity in procedures and requirements and suspicions of graft and corruption.

Even the DFA, the DOJ have not been spared by ARTA for recurring delays and slow services that are tagged as RED TAPE. Governors and mayors have repeatedly been pointed to as “extortionists” by telcos for asking P50,000 to P200,000 just to sign construction or business permits for cell sites. It was for these reasons that directives were issued by President Duterte where all government offices and agencies were given 7-14-21 days to process and decide to pass or reject applications for permits, approvals etc. depending on whether a matter was simple (7 days) or complex (14 days) or highly technical (21 days). If the concerned agency fails to act after all requirements have been submitted, the EODB law provides that the applications would be deemed approved.

But because of the “preventive suspension” meted out by the Ombudsman on the ARTA leadership, there may now be a legal stepping-stone for historically corrupt or inept or red tape ridden quasi-judicial agencies and local government officials to claim that the ARTA has no power or authority to meddle in their business. By suspending ARTA officials and claiming that ARTA over-stepped their powers (which is debatable), the Ombudsman may have opened up a Pandora’s Box and let lose a legion of Red Tape Monsters, so many corrupt national and local government officials will now be wreaking havoc on small and large companies applying for permits, approvals etc. All the effort we all put into stopping extortionist mayors collecting money for “Special Use Permits” to build cell sites will once again become a recurring nightmare. Food and pharmaceutical companies may end up wallowing in despair when they are once again forced to sit out six to 24 months of lost opportunities and business while waiting to get approval from the FDA to sell products. The fixers at the LTFRB will once again find gainful employment as they personally follow up on franchises to operate.

Participants in a “recently” concluded bidding process of the Laguna Lake Development Authority related to their floating solar power project claim to have received notices as winning bidders last May 30, 2022 based on resolution #5 dated May 26, 2022 and were advised to issue check payments relative to their bids and to await the issuance of “Notice of Award” subject to the guidance or directions of the LLDA Board. After going through years of study and a long and rigorous bidding process, it’s all supposed to be ministerial but instead, no announcement has been made and the perceived  intentional delay of issuing the “Notice of Award” is now officially in violation of the EODB law or Anti-Red Tape law championed by outgoing President Rodrigo Duterte and incoming Senate president Migs Zubiri. Prior to the shift in the political landscape, the bidders could have simply filed a complaint with the ARTA or the Anti-Red Tape Authority but the suspension meted out by the Ombudsman makes that option quite weak, given that the Ombudsman has stamped a huge question mark on the legal authority of the ARTA.

So, where do the bidders go to file their complaint? The Office of the Ombudsman? From what I gather there are so many similar complaints with the Office of the Ombudsman that have not been acted upon. If legitimate winning bidders are at a loss and confused, we can only imagine how many private corporations and industries must be worried about the recent actions of the Ombudsman versus ARTA. The decision of the Ombudsman goes beyond an act of preventive suspension. It has indirectly but effectively undermined both the law and the enforcer of laws against red tape. As for the supposed winning bidders of the LLDA-sponsored floating solar power project: this is “The Mess Of Doing Business” in the Philippines.